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Filing an Unfair Labor Practice Charge

Has an FAA manager threatened that it would be better for you not to join NATCA if you want to get promoted at the FAA? Were you denied union representation during an investigation where you feared discipline despite your request for a Facility Rep? Has the FAA made a change in working conditions without bargaining with NATCA? Has the Agency failed to provide NATCA with information necessary for a grievance or negotiations? If your answer to any of these is yes, you may want to file an unfair labor practice charge.

The Federal Service Labor-Management Relations Statute, 5 U.S.C. Chapter 71, has protections for employees and unions to which an Agency must adhere. Failure of an Agency to recognize those rights can result in an unfair labor practice charge under 5 U.S.C. 7116(a). The first two examples deal with an employee’s rights to join a union and to have union representation in an investigatory interview. The last two examples deal with the union’s rights and its ability to represent bargaining unit employees.

An employee has the right to join a labor organization without fear of reprisal and is protected in the exercise of that right. See 5 U.S.C. 7102. An Agency is prohibited from interfering in an employee’s right to exercise his/her right to join a union as well as from discriminating against an employee for membership in a union in connection with tenure, promotion, or other conditions of employment. The first example is an unfair labor practice under 5 U.S.C. 7116(a)(1) and (a)(2) that specifically prohibits such interference in exercising a right and discrimination for membership in the union as well as (a)(8) for a violation of employee’s rights. When filing an unfair labor practice charge, there is automatically a violation of (a)(1). Whenever another section of the Statute is violated, you should cite (a)(8) which notes an Agency’s failure or refusal to comply with any provision of the Chapter.

An Agency must also adhere to the Statute’s protection of employee in an examination by an Agency representative if he/she reasonably believes that the examination may result in disciplinary action against the employee and he/she requests representation. See 5 U.S.C. 7114(a)(2)(B). The second example is an unfair labor practice under 5 U.S.C. 7116(a)(1) and (8). When an employee is questioned by management to gather information about a matter, it can be considered an examination in connection with an investigation. If an employee has a reasonable fear of discipline based on an objective review and asks for a union representative, the request should be granted. Remember, even if you are not the “subject” of the investigation but rather a witness, you may still have a reasonable belief of discipline.

The third example involves the FAA’s duty to negotiate with NATCA in good faith. Specifically, an Agency’s refusal to consult or negotiate in good faith with a union as required by Chapter 71 is an unfair labor practice. See 5 U.S.C. 7116(a)(5). The FAA must bargain in good faith with the union over various changes in working conditions that are more than “de minimis.” That is a legal standard that requires there to be an impact upon employees that is more than minimal. This analysis applies to a change where NATCA can bargain the substance or a change where NATCA can bargain over the impact resulting from management’s exercise of its rights. In order to make an assessment of the impact, determine who has been affected (e.g., which employees, how many employees) and the type and extent of the change (e.g., employees lost the ability to work overtime due to a change in duty hours; employees had a significant addition to duties due to a change of duties; employees no longer have quick access to a break room due to its relocation, etc.). The FLRA has stated that a change affecting one employee may be more than de minimis. The FLRA has ruled that changes resulting in loss of pay, changes resulting in an increase in workload, and changes involving relocation of a break area are more than de minimis in impact. Nevertheless, each case is fact specific. If the FAA implements a change unilaterally without negotiating over a matter with a more than de minimis impact, it is an unfair labor practice under 5 USC 7116(a)(1) and (5).

The fourth example involves the FAA’s duty to provide NATCA information that is normally maintained, available and necessary for NATCA to use in matters within the scope of collective bargaining. See 5 U.S.C. 7114(b)(4). NATCA is entitled to information in order to consider filing a grievance, to present a grievance, and/or to engage in negotiations over a legally negotiable matter. However, NATCA must identify a particularized need for the information: why the information is necessary, how NATCA will use the information, and how NATCA will use it to carry out its representational function. If the FAA denies a request claiming that particularized need was established, try and clarify the request in order to get the information. If the FAA fails to provide the information after NATCA expressed a particularized need, especially when NATCA clarified its request pursuant to the FAA’s initial denial of information, it may be time to file an unfair labor practice charge. The FAA’s refusal to provide the information when NATCA has articulated a particularized need is an unfair labor practice under 7116(a)(1) and (8).

Reminder: Just as you cannot file a grievance and an appeal over a disciplinary action, you cannot file a grievance and an unfair labor practice charge over the same matter. Whichever one is filed first bars the other from being heard. See 5 U.S.C. 7116(d).